Countryside and Rights of Way Bill: Amendment
196: vehicular access across common land

Letter to the Clerk from the Department
of the Environment, Transport and the Regions

I refer to our telephone discussion earlier today
in which I notified you of an amendment creating a new delegated
power.

This amendment was originally tabled on or about
30 October and subsequently itself became the subject of a number
of non-Government amendments (196A to 196J). Amendment 196 came
on for debate last night during the third and final session of
Report - see Hansard at column 410 and following.

At column 420 the Minister addressed Amendment 196H
moved by the Baroness Byford and the Lord Glentoran. That amendment
was designed to make regulations made under the new clause subject
to the affirmative resolution procedure.

Unfortunately, some confusion ensued in the Chamber
as to whether the new clause had already been considered by the
Committee or whether the Committee was yet to report. Unbeknown
either to the Minister or officials in attendance, this new delegated
power had not been included in the Department's 3rd Supplementary
Memorandum submitted to the Committee on 31 October. The Minister's
observations in the penultimate paragraph of column 420 need to
be understood in this light.

As regards Amendment 196H and the question of the
level of Parliamentary scrutiny, I am now able to report that
the Government intends to table an amendment so that regulations
made under the new clause will be subject to affirmative resolution.

In the meantime, I attach the details of the new
power in the usual manner.

Ian Clyde

17 November 2000

Memorandum by the Department of the Environment,
Transport and the Regions

CLAUSE (VEHICULAR ACCESS ACROSS COMMON LAND ETC.)

1. The purpose of this amendment is to protect property
owners who have been driving over a way across common or other
land for over 20 years (as a means of access to the property)
but who are now faced with an excessive charge from the landowner
if they wish to continue so doing. The issue has arisen as a result
of a relatively recent ruling confirming that no easement by long
use is capable of creation where the use itself constituted a
criminal offence. It is an offence to drive vehicles over common
land under a number of enactments.

2. Subsection (1) makes the power described below
applicable to a way which the owner or occupier (from time to
time) of any premises has used as a means of access for vehicles
to the premises if the use of that way was an offence under an
enactment applicable to the land over which the way passes but
would otherwise have been sufficient to create, on of after a
date to be prescribed by regulation, an easement giving a right
of way for vehicles.

3. Subsection (2) provides that regulations may be
made as respects a way of the sort described, for the creation,
in accordance with the regulations, of an easement subsisting
at law for the benefit of the premises and giving a right of way
for vehicles over that way. The owner of the premises will be
required under the regulations to make an application for the
right of way and to comply with prescribed requirements.

4. Subsection (4) provides that in particular, the
regulations made under subsection (2) may address a number of
detailed factors, including the opportunity for objections to
be lodged, referral of any matter to the Lands Tribunal (and the
procedure therefor) and provision for payment for the right of
way. On this last point, it is envisaged that compensation for
the creation of a right of way will be capped.

5. Regulations made under this new section shall
be made by the Secretary of State as respects England and the
National Assembly as respects Wales: subsection (5).

6. According to subsection (6), the regulations shall
be made by way of statutory instrument subject to the negative
resolution procedure. However, see now #10 below.

7. It is apparent from the breadth of factors to
be addressed by the regulations that the subject matter is fairly
complex and the level of detail required is substantial. In part,
the detail will be required to ensure that landowners over whose
land the way runs are not able to avoid the application of this
new form of statutory right of way over a way the subject of the
new section. It is also envisaged that the capping of compensation
(see #4 above) will vary depending on the type of affected premises
in question. Compensation could also be made payable by instalments.
Further, the circumstances in which a way of the type covered
might arise are potentially many and varied, which explains the
capacity of the regulations to deal with differing circumstances
- for example, where the owner of the land is a charity: subsection
(4)(i).

8. An indication in general terms of the way in which
the delegated powers will be used to achieve the Government's
objectives appears in the debate recorded in Hansard at column
411 to 412. There is then further indication as the debate unfolds
of some specific factors likely to feature in the regulations.
Most of these are mentioned herein.

9. In the Government's view, the matters outlined
(or referred to) in #7 and #8 demonstrate the appropriateness
of using a delegated power to achieve the object described in
#1. It would be infelicitous to try to incorporate the necessary
provisions onto the face of the Bill.

10. Although Amendment 196 was originally envisaged
as a delegated power subject to the negative resolution procedure,
the introduction of Amendment 196H has led the Government to revisit
the question of level of Parliamentary scrutiny. The Government
now accepts that the nature and extent of the power is such that
the commensurate level of scrutiny is affirmative resolution.
The Government intends to table an amendment to make the regulations
subject to the affirmative resolution procedure.